The Republican strategy for attacking Supreme Court nominee Elena Kagan has been revealed. And even by the standards of a party that has drifted far from its moral and ideological moorings, it is remarkable.
The RNC’s complaint: Kagan agrees with former Supreme Court Justice Thurgood Marshall that the sections of the U.S. Constitution that not merely accepted slavery but identified slaves as less than human were “defective.”
The current solicitor general of the United States and former dean of Harvard Law School once clerked for Justice Marshall, the lawyer for the civil rights movement who was the first African-American to serve on the nation’s highest court.
Like many Americans of varying political and ideological backgrounds, Kagan respects both Marshall’s legacy as a lawyer and a jurist who recognized America’s ability to progress in the direction of what the first Republican president of these United States referred to as “a more perfect union.”
In accepting President Obama’s nomination to sit on the bench where Marshall once sat, Kagan referred to her mentor as a justice “who did more to promote justice over the course of his legal career than did any lawyer in his lifetime.”
This was not the first time that Kagan hailed Justice Marshall’s view of the law and the Constitution. In a 1993 Texas Law Review article, the nominee wrote:
During the year that marked the bicentennial of the Constitution, Justice Marshall gave a characteristically candid speech. He declared that the Constitution, as originally drafted and conceived, was "defective"; only over the course of 200 years had the nation "attain[ed] the system of constitutional government, and its respect for… individual freedoms and human rights, we hold as fundamental today."
In a memo attacking Kagan, which the RNC distributed around the same time President Obama nominated her, the committee demanded to know: “Does Kagan Still View Constitution ‘As Originally Drafted And Conceived’ As ‘Defective’?”
RNC chair Michael Steele, echoed that objection, with a declaration that: “Given Kagan’s opposition to allowing military recruiters access to her law school’s campus, her endorsement of the liberal agenda and her support for statements suggesting that the Constitution ‘as originally drafted and conceived’ was ‘defective,’ you can expect Senate Republicans to respectfully raise serious and tough questions to ensure the American people can thoroughly and thoughtfully examine Kagan’s qualifications and legal philosophy before she is confirmed to a lifetime appointment.”
No one has ever accused Michael Steele of being an expert of the Constitution, the Supreme Court or American history.
Nor has anyone ever accused the RNC chair of thinking before he attacks.
But even Steele could have figured out the “defect” to which Marshall was referring.